In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 20-1692 

KYLIE DIDONATO, 

Plaintiff-Appellant, 

v.

TIM PANATERA, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:19-cv-02737 — Virginia M. Kendall, Judge. 

____________________ 

ARGUED SEPTEMBER 13, 2021 — DECIDED FEBRUARY 3, 2022 

____________________ 

Before RIPPLE, ROVNER, and SCUDDER, Circuit Judges. 

SCUDDER, Circuit Judge. Section 1983 lawsuits can raise 

hard questions about whether misconduct constitutes state or 

private action. While the wrongdoing alleged here is plenty 

disturbing, we find the line drawing more straightforward. 

Kylie DiDonato was seriously injured when she fell and hit 

her head in Tim Panatera’s bathroom. DiDonato later invoked 

§ 1983 and alleged that Panatera—a City of Chicago paramedic—shirked his responsibility to treat her and instead saw 
2 No. 20-1692 

her weakened state as an opportunity to sexually assault her. 

She contended that this inaction by someone acting under 

“color of state law” violated her rights under the U.S. Constitution. The district court recognized the gravity of Panatera’s 

alleged misconduct, but rightly concluded that DiDonato 

failed to plead facts showing that Panatera was acting in his 

capacity as a City paramedic for purposes of a § 1983 claim. 

We affirm. 

I 

Kylie DiDonato slipped, fell, and seriously injured her 

head on a bathtub in Tim Panatera’s home in March 2018. Panatera found DiDonato disoriented and badly bleeding on the 

bathroom floor. But rather than calling 911, driving DiDonato 

to the hospital himself, or drawing upon his training as a paramedic to treat her, Panatera allegedly did no more than rinse 

the blood from DiDonato’s head and wrap it in a towel. From 

there, DiDonato contends, Panatera moved her to his bed and 

sexually assaulted her as she drifted in and out of consciousness. When DiDonato regained consciousness the next afternoon, Panatera drove her home and then reported to work. 

With the help of a friend, DiDonato made her way to an 

emergency room later that day. The ER team sutured her head 

wounds and informed her that she had sustained head 

trauma and a concussion. 

A few months later DiDonato filed this lawsuit and, in an 

amended complaint, added a § 1983 claim against Panatera. 

She alleged that Panatera, as a licensed paramedic, violated 

her rights under the Fourteenth Amendment’s Due Process 

Clause by failing to provide medical care after her fall. She 
No. 20-1692 3

also brought a host of state law claims, including for assault, 

battery, and negligence. 

The district court dismissed DiDonato’s § 1983 claim for 

two interrelated reasons. First, the court explained that, under 

the Supreme Court’s decision in DeShaney v. Winnebago 

County Department of Social Services and related cases, DiDonato had to allege that a state actor failed to adhere to a 

duty to protect and care for a person with whom the state had 

a “special relationship.” 489 U.S. 189, 200–02 (1989). The classic example is a prisoner: the state owes those in its custody 

physical protection and medical care. See, e.g., Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). But, the district court continued, states (and municipalities like the City of Chicago here) 

are not in a “special relationship” with all residents and thus 

do not shoulder a constitutional duty to provide medical care 

to anyone needing help. Applying those principles led the district court to conclude that DiDonato failed to allege facts necessary to show the City—through one of its off-duty paramedics—had a constitutional obligation to protect and care 

for her following her fall. What was lacking, the district court 

emphasized, was any allegation that DiDonato, as a functional matter, was ever in the City’s care or custody. 

Second, and relatedly, the district court concluded that DiDonato failed to plausibly allege that Panatera acted “under 

color of state law” on the night in question. Section 1983, the 

court explained, does not cover disputes between private citizens, and an individual’s employment by the state does not 

render any and all action by that person state action. To be 

sure, the district court acknowledged that some steps Panatera took may have amounted to medical care, such as wrapping DiDonato’s head in a towel. But the district court 
4 No. 20-1692 

determined that the necessary state action inquiry could not 

proceed at that level of generality. Instead, the analysis 

needed to account for the context in which DiDonato’s need 

for help and medical care arose—an entirely private interaction between Panatera and DiDonato within his home. The alleged facts, in short, did not permit a plausible finding that 

Panatera failed to perform any official duty as a licensed paramedic. 

Having dismissed DiDonato’s § 1983 claim, the district 

court then declined to exercise supplemental jurisdiction over 

the remaining state law claims. 

DiDonato now appeals.

II

A 

A plaintiff may hold a public official personally liable for 

misconduct under § 1983 upon satisfying two “essential elements.” Yang v. Hardin, 37 F.3d 282, 284 (7th Cir. 1994). First, 

the challenged conduct must have been “committed by a person acting under color of state law”—a requirement coming 

directly from § 1983’s text. Id. Second, the state actor’s conduct 

must have deprived the plaintiff of “rights, privileges, or immunities secured by the Constitution” or federal law. 42 

U.S.C. § 1983; see also Wyatt v. Cole, 504 U.S. 158, 161 (1992) 

(“The purpose of § 1983 is to deter state actors from using the 

badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such 

deterrence fails.”). 

The traditional understanding of what it means for an official to act “under color of state law” encompasses misconduct by officials exercising power “possessed by virtue of 
No. 20-1692 5

state law and made possible only because the wrongdoer is 

clothed with the authority of state law.” West v. Atkins, 487 

U.S. 42, 49 (1988) (citation omitted). Indeed, it is “firmly established” that a § 1983 defendant acts “under color of state law 

when he abuses the position given to him by the State.” Id. at 

49–50. 

But it is equally well settled that a “mere assertion that one 

is a state officer does not necessarily mean that one acts under 

color of state law.” Gibson v. City of Chicago, 910 F.2d 1510, 

1516 (7th Cir. 1990); see also Wilson v. Price, 624 F.3d 389, 392 

(7th Cir. 2010) (“Not every action by a state official or employee is to be deemed as occurring ‘under color’ of state 

law.”) (citation omitted). Nor is it dispositive whether the 

state employee was on- or off-duty at the time the incident 

occurred. See, e.g., Briscoe v. LaHue, 663 F.2d 713, 721 n.4 (7th 

Cir. 1981) (“[A]cts committed by a police officer even while on 

duty and in uniform are not under color of state law unless 

they are in some way ‘related to the performance of police duties.’”) (citation omitted); see also Pickrel v. City of Springfield, 

45 F.3d 1115, 1118–19 (7th Cir. 1995) (collecting cases concluding that off-duty officers were nonetheless acting under color 

of state law in particular circumstances). Whether an individual is acting under color of state law “turn[s] largely on the 

nature of the specific acts” the official performed, “rather than 

on merely whether he was actively assigned at the moment” 

to the performance of his official duties. Pickrel, 45 F.3d at 

1118. 

Our case law illustrates the necessity of a rigorous factbound inquiry. Take, for example, our decision in Pickrel. 

Crystal Pickrel alleged that an off-duty officer acted under 

color of state law by informing her she was under arrest, 
6 No. 20-1692 

throwing her to the ground, and putting her in handcuffs. See 

id. at 1117. We concluded Pickrel had pled enough to survive 

a motion to dismiss based on her allegations that the officer 

was wearing his police uniform, complete with badge and 

gun, and driving his marked squad car at the time of their encounter. See id. at 1116–18 (emphasizing that the uniform and 

badge were both “signs of state authority,” the gun enabled 

the officer to “enforce his authority,” and the squad car “advertis[ed] the presence of a police officer” to those present). 

We adhered to similar reasoning in Lopez v. Vanderwater, 

620 F.2d 1229 (7th Cir. 1980). Flor Lopez brought a § 1983 suit 

against a state court judge who detained him at gunpoint, initiated charges for petty theft, convicted him on an allegedly 

forged guilty plea, and sentenced him to eight months in jail. 

See id. at 1231–33. Though then-Judge Vanderwater overstepped the bounds of his state-granted authority, we concluded his actions were taken under color of state law. “Action 

taken by a state official who is cloaked with official power and 

who purports to be acting under color of official right is state 

action,” and the judge was only able to take the constitutionally offensive actions he did “because he was cloaked with the 

office of the judge.” Id. at 1236–37. 

Where, on the other hand, a plaintiff does not allege that a 

public official’s actions involved some inappropriate invocation or exercise of state authority, there is no § 1983 claim. 

And that is so, our cases demonstrate, even if the alleged conduct resembles job-related tasks the official performs at the 

state’s behest. We saw this in Barnes v. City of Centralia. 943 

F.3d 826 (7th Cir. 2019). A police officer reported credible 

threats made against him and his family to a state prosecutor, 

and the prosecutor decided to press charges against the 
No. 20-1692 7

individual involved. See id. at 829–30. After the charges were 

dropped, the individual brought a § 1983 case against the officer. We explained that although the interaction that led to 

the plaintiff’s arrest “occurred during [the defendant’s] employment” as a police officer, the officer acted as a private citizen when he lodged his complaint with the prosecutor, “not 

as an investigating officer.” Id. at 831. His report was therefore 

“a private act that did not involve any exercise of state authority.” Id. 

Similarly, in Hughes v. Meyer, we concluded that a Wisconsin game warden who reported threatening conduct to law 

enforcement was “functionally equivalent to . . . any private 

citizen” making a police report—and, critically, his “status as 

a DNR official did not clothe him with greater authority” in 

that act “than any other citizen would possess.” 880 F.2d 967, 

972 (7th Cir. 1989). 

Considered together, these cases supply the principles 

that resolve this appeal. To plead that a defendant acted under color of state law, a § 1983 plaintiff must allege that a defendant’s invocation of state authority in one way or another 

facilitated or enabled the alleged misconduct. That the defendant is a state employee is not enough. “[S]tate officials or 

employees who act without the cloth of state authority do not 

subject themselves to § 1983 suits.” Id. at 971; see also, e.g., Latuszkin v. City of Chicago, 250 F.3d 502, 506 (7th Cir. 2001) (affirming dismissal of a § 1983 claim brought against an intoxicated off-duty police officer who struck and killed a pedestrian in his private vehicle because the plaintiff did not allege 

that the officer was “engaged in police activity, that he displayed any police power, or that he possessed any indicia of 

his office at the time of the accident”). 
8 No. 20-1692 

B 

The district court applied these exact principles and determined that DiDonato failed to allege that Panatera acted under color of state law. We reach the same conclusion after taking our own independent look at the allegations in DiDonato’s second amended complaint. See, e.g., Bilek v. Fed. Ins. 

Co., 8 F.4th 581, 586 (7th Cir. 2021) (applying de novo review 

to a Rule 12(b)(6) dismissal). 

DiDonato alleged Panatera was acting “[i]n performance 

of his official duties” as a trained paramedic when he “picked 

[her] off the floor, placed her in his bathtub,” “rinsed blood 

from her head and body” and “wrapped [her] head with a 

non-sterile bathroom towel.” But what the rest of the complaint makes clear is fatal to DiDonato’s § 1983 claim: the 

events in question all occurred in the privacy of Panatera’s 

home and, more importantly, in the context of DiDonato and 

Panatera’s personal relationship. 

Panatera’s alleged attempts to slow or stem DiDonato’s 

bleeding certainly relate to the duties he performs as a paramedic—no doubt he routinely treats head and other superficial wounds while responding to 911 calls. And Panatera was 

more able to respond to DiDonato’s injuries than someone 

without medical training. His professional background leaves 

more room for criticism of the adequacy of Panatera’s response and the wisdom of his decision making, and perhaps 

leaves him exposed to liability for negligence under state law. 

But the mere overlap between Panatera’s routine job responsibilities and the conduct DiDonato complained of does 

not mean that Panatera acted under color of state law when 

he decided not to take DiDonato to the emergency room or to 
No. 20-1692 9

provide other medical help. What is missing from DiDonato’s 

complaint is any plausible allegation either that Panatera’s action or inaction was a misuse of the City’s power or that his 

wrongdoing was made possible because he was “clothed with 

the authority of state law.” Barnes, 943 F.3d at 831 (citation 

omitted). Panatera was not dispatched to the scene to tend to 

DiDonato’s injuries in his role as a City paramedic. Nor did 

he invoke his authority to interfere with someone else’s attempt to treat her wounds. Common decency, not his employment status, demanded Panatera take some steps to stop DiDonato’s bleeding. And it was Panatera’s alleged self-serving 

opportunism, not an exercise of state authority, that prevented DiDonato from leaving his home and seeking further 

care. 

DiDonato urges a different conclusion by focusing on a 

particular detail alleged in her complaint—that Panatera was 

“on call” as a paramedic on March 19 and took at least one 

phone call from a work colleague before he drove her home. 

But that contention, which we accept as true, does not change 

our analysis. DiDonato’s complaint still lacks any allegation 

that Panatera’s alleged misconduct toward her was facilitated 

by a misuse of state power or involved an invocation of state 

authority. See, e.g., Luce v. Town of Campbell, 872 F.3d 512, 514 

(7th Cir. 2017) (concluding that a public official who made defamatory posts about the plaintiff and who “did some of the 

dirty work while on duty” using office equipment did not act 

under color of state law). 

DiDonato’s complaint describes behavior that, while abhorrent, was “wholly unconnected” to Panatera’s employment. First Midwest Bank v. City of Chicago, 988 F.3d 978, 987 

(7th Cir. 2021). DiDonato and Panatera did not encounter each 
10 No. 20-1692 

other as paramedic and patient, but as private persons together in Panatera’s home. Panatera’s “actions were those of 

a private citizen in the course of a purely private social interaction.” Id. Any action or inaction was not under color of state 

law. 

Because we agree with the district court that DiDonato 

failed to allege that Panatera acted under color of state law, 

we need not immerse ourselves in any aspect of the court’s 

reasoning under DeShaney. We instead stop on the state action 

point and AFFIRM the dismissal of DiDonato’s § 1983 claim.